Can a person be criminally or civilly responsible for recording phone conversations?

The recording of phone conversations or eavesdropping is a hot topic in the age of increasing technology and decreasing privacy. The issue often arises out of a matrimonial action but extends to all walks of life. Whether it is a cheating spouse, law enforcement, an employer or just a nosey neighbor it is important to understand the law of the state where the eaves dropping takes place and what conduct is illegal. Let’s begin with the State of New York. In New York, under certain circumstances “wiretapping” is a serious crime. N.Y. State Penal law § 250.05 states “ A person is guilty of eaves dropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication.” Eavesdropping is a class E Felony punishable by an indeterminate sentence of 1-4 years in the state penitentiary. When can a person record a phone conversation in New York? The answer is simple. The conversation may be recorded when one party to the conversation consents to the recording. This is called a “One Party" consent state. A person may record his own phone conversation with another provided both parties are both within a one-party state when the call takes place. - See below for a list of one-party states. He may also eavesdrop or record the conversations of third parties provided at least one party to that conversation has given her consent. In a one-party state the law does not require notice to the other party that the call is being eavesdropped or recorded. Federal wire tapping statutes are similar to New York's one-party rule. Federal law requires that recorded phone calls and in-person conversations have the consent of at least one of the parties. See 18 U.S.C. 2511(2)(d). The trouble arises when a person surreptitiously records the conversations of others and is not a party to the conversation. This is a felony crime in New York and violates the law in all states. In a one-party state at least one party to the conversation must consent to the conversation being taped. Law enforcement is not exempt from this rule. Law enforcement may not eavesdrop on the conversations of third parties unless they first obtain a warrant from a court predicated on Probable Cause. This is often referred to as an “Eavesdropping warrant.” In the event that incriminating evidence is obtained without a warrant, the evidence may be suppressed in court as a violation of the 4th Amendment right against unreasonable search and seizures. A two-party state requires the consent of all parties to the phone conversation before it may be recorded. This essentially means that a person must first obtain the consent off all parties prior to recording the phone call. We have all been asked for our consent at one time or another to permit a phone call to be recorded. Any national customer service center will usually ask you something akin to the following: “Do we have your consent to record this conversation for quality assurance purposes?” Once a person verbalizes his consent, the call may be recorded. There are twelve (12) two-party states in the U.S. they are: California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania and Washington State. The waters can get murky in this area of law. For an example, how are these laws applied when a person in a one-party state eavesdrops or records a phone conversation with someone in a two-party state? Which state law applies? Where can criminal charges be maintained? Can the person be sued in his home state or another state? Does Federal law apply? The answers to these questions often vary from state to state and require knowledge of the individual state's laws and an understanding of how the courts have ruled on similar cases in those states. Always contact an attorney before recording or eavesdropping on a phone conversation.